Mother Has Preferential Right To Custody Of Minor Below 5 Yrs But Utmost Consideration Is Child's Welfare: P&H HC Rejects Habeas Corpus Against Father

Under Section 7 of the Act, the Court should be guided by the sole consideration of the welfare of the minor, and what would be for the welfare of the minor must necessarily depend upon the facts and circumstances of each particular case.

The petitioner and respondent got married in 2014 and had 2 children out of this wedlock. Due to a matrimonial dispute, they started living separately and the elder child was living with the mother while the younger child was living with the father. It is the case of the petitioner that her minor son is taken illegally by her husband and in-laws who are habitual offenders as more than 198 FIRs under the NDPS Act are registered against them. She made a complaint before the Police, SHO, and DSP but no action was taken.

After considering rival submissions made by the parties, the court held that a case pertaining to custody of a minor child is to be decided on the sole and predominant criterion of the interest and welfare of the minor.

It is a settled principle of law that whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. If welfare of the child so demands then technical objections cannot come in the way.

The court noted that the custody of a minor child below five years is ordinarily with the mother.

In view of the above referred judicial precedents, it has emerged that in view of proviso to Section 6(a) of the HMG Act, the custody of a minor child who has not completed the age of five years shall ordinarily be with the mother.

Court further noted that the duty of a court while exercising its jurisdiction under parens patraie in custody matters is more onerous. Sentiments and the welfare of the minor are supreme considerations and cannot be ignored.

Regarding the facts of the instant case, the court stated that the mother being a natural guardian of her minor child has a preferential right to claim custody but the utmost consideration before the Court is the well-being of the child and not the legal right of a party.

It is true that mother being a natural guardian of a minor child has a preferential right to claim custody of her son. However, the utmost consideration before this Court is the well being of the minor and not the legal right of a particular party.

Stating further that none of the parent's right to the custody of their minor child is absolute, the court concluded that custody of the father as a natural guardian is not illegal or unlawful.

Taking into consideration the provisions of law and the factual matrix which is disputed, I am of the opinion that custody of the father as a natural guardian cannot be said to be illegal or unlawful and therefore, it would not be appropriate to issue a writ of habeas corpus in favour of the petitioner.

After noting that that minor child has not been kept in illegal custody, the court dismissed the instant petition of habeas corpus finding it sans merit.

Also Read: Proviso To S.6 Guardians & Wards Act Does Not Render Father's Custody Of Minor Below 5 Yrs "Illegal": Patna High Court

Case Title : Poonam Kalsi v. State Of Punjab And Others

Citation: 2022 LiveLaw (PH) 85

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